L.L.L. and C.A.L. v. L.M.S. and R.J.M., 2021 MBPC 32

CITATION: L.L.L. and C.A.L. v. L.M.S. and R.J.M., 2021 MBPC 32 THE PROVINCIAL COURT OF MANITOBA THE PAS CENTRE IN THE MATTER OF: O.D.S. Born [...], 2013 BETWEEN: L.L.L. and ) John Skinner and C.A.L. ) Dayna Zaharia ) For the Guardianship Applicants Guardianship Applicants ) ) and ) ) L.M.S. and ) Calvin J. Friesen R.J.M. ) For the Respondents ) Respondents ) ) Decision delivered ) July 27, 2021 WIEBE, CJ [ 1 ] This is an application for guardianship pursuant to The Child and Family Services Act , C.C.S.M., C. c80 and amendments thereto.

Introduction [ 2 ] The guardianship applicants L.L.L., the maternal grandfather, and C.A.L., the maternal step-grandmother, are applying to be the guardians of O.D.S. (O.), born [...], 2013. The named respondents are L.M.S., the mother of O., and R.J.M., the father of O. Tragically, the mother L.M.S., passed away on July 8, 2019. O. and L.M.S. had been living with the guardianship applicants in The Pas since March 22, 2016. R.J.M. is opposed to the guardianship application and wants full custody of O. While R.J.M. has never had O. full-time, he has had ongoing and liberal access with her.

If R.J.M. assumes custody, O. will move to Emo, Ontario to live with him on a full-time basis. [ 3 ] An application for guardianship was filed on May 2, 2019. A hearing date of June 5, 2019, was set. However, on May 3, 2019, the guardianship applicants filed a notice of motion for interim guardianship and requested an urgent hearing. While RJ.M. requested an adjournment of the interim guardianship application, the Court granted an interim order of guardianship to the guardianship applicants on May 15, 2019, in order not to have O. in legal limbo if her mother passed away before a full hearing on the merits.

A full hearing was held in The Pas before me from July 5-7, 2021, inclusive. Issue [ 4 ] The issue in this matter is what is in the best interests of O. The Participants in O.’s Life [ 5 ] L.M.S. is the mother of O. and the daughter of L.L.L. and D.I. (nee S.). L.L.L. and D.I. never lived together but they did co- parent L.M.S. when they all lived in The Pas. When L.M.S. was age 6, L.M.S. and D.I. moved to Dryden, Ontario. [ 6 ] D.I. continues to live in Dryden, Ontario with her husband. D.I., being the maternal grandmother, has been involved with O. since she was born.

O. and L.M.S. lived with D.I. for the first 2 ½ years of O.’s life except for brief periods of time when L.M.S. was living alone or with another partner. D.I. testified in support of the Ls becoming O.’s guardians. [ 7 ] L.L.L. and his wife C.A.L. live in The Pas, Manitoba. They have been married for over 20 years. L.L.L., age 55, is a Correctional Officer with Justice Canada since 2005 and C.A.L., age 55, is an Executive Director with The Pas Association for Human Development since 2000. The Ls live in a comfortable home in a quiet neighbourhood close to schools and recreational facilities in The Pas.

They have been involved in O.’s life since she was born. For the last few years O. has lived with them and L.M.S., and O. continued to live with them after L.M.S. passed away. The Ls are financially secure and prepared to care for O. going forward. [ 8 ] R.J.M. is O.’s father. He is currently 29 years old. R.J.M. currently lives just outside Emo, Ontario. He is steadily and gainfully employed. RJ.M. purchased a home in Emo two years ago. It is a three bedroom home on one acre of property. R.J.M. lived in Vermilion Bay previously, which is approximately 30 minutes from Dryden, where he met L.M.S.

[ 9 ] R.J.M.’s parents and O.’s paternal grandparents, G. and J.M., live in Vermilion Bay with their two sons G. and C. They are close to R.J.M. and have been involved in providing care to O. and having her for visits while she is under the care of her father. J.M. testified in support of R.J.M. having custody of O. [ 10 ] O. is now seven years old. She currently attends Kelsey Community School in The Pas, Manitoba. Based on the evidence and the exhibits filed, O. appears to be a good student who is conscientious, curious and happy. O. is described as being outgoing and friendly.

O. has suffered the loss of her mother and notwithstanding, appears to be a fairly well-adjusted child. [ 11 ] T.S., is the daughter of D.I. and the sister of L.M.S. T.S. testified in support of the Ls becoming O.’s guardians. T.S. lives in The Pas with her maternal grandparents. [ 12 ] O. has a number of great grandparents, aunts, uncles and cousins in The Pas. As noted, her maternal grandmother, D.I., lives in Dryden, Ontario and her paternal grandparents live in Vermilion Bay. She also has aunts, uncles and cousins who live close to her father.

Background [ 13 ] It is important to lay out the background of events to put the positions of R.J.M. and the guardianship applicants in context. [ 14 ] R.J.M. and L.M.S. were known to each other because they associated with the same group of people in their younger years. L.M.S.’s sister T.S. testified, T.S. was 18 years old when she first met R.J.M. in 2011. R.J.M., L.M.S. and T.S., along with R.J.M.’s brother G., (who was L.M.S.’s age 15) would all socialize together. [ 15 ] According to T.S.’s evidence, R.J.M. would often pick up L.M.S., T.S. and others.

They would drive around and go to the Best Western pool to swim as R.J.M. had a pass. Occasionally, R.J.M. would purchase alcohol and cigarettes for the group and rent a hotel room where these young people would socialize. T.S. indicated she and L.M.S. would sometimes drink at the hotel room, but R.J.M. did not. [ 16 ] T.S. described a few encounters she had with R.J.M. when they were all hanging out, which made her uncomfortable. In one incident, she indicated she was in R.J.M.’s truck and he tried to make her perform oral sex. She said she did not want to and he stopped when her friend returned to the truck.

On another occasion while at R.J.M.’s place with L.M.S., she called her mother to pick her up because she was uncomfortable and did not want to stay with R.J.M. R.J.M. took the phone from her and said he would drive her home. She declined and D.I. picked her up. A third occasion, T.S. spent two nights with R.J.M. and her friend and the friend’s boyfriend in a hotel room. Although nothing was reported to have happened between her and R.J.M., she testified she was afraid something would.

In all, T.S. painted a picture of R.J.M. as someone she was not comfortable with, but she acknowledged she and her friends would “use him” for rides, cigarettes, alcohol and entertainment. [ 17 ] Based on the undisputed evidence, in 2012, L.M.S. moved from her mother’s home in Ontario, back to The Pas to live with L.L.L. and C.A.L. She did return to Ontario for visits. Prior to one of these visits, L.M.S. was communicating with R.J.M. When she returned to Ontario for spring break in 2013, she met up with R.J.M. According to T.S., this was when T.S. was at R.J.M.’s home and T.S. had her mother pick her up.

L.M.S. was also there and told her mom she was having a sleepover with another friend, but in fact stayed with R.J.M. [ 18 ] L.M.S. had a single sexual encounter with R.J.M. and became pregnant. R.J.M. was age 21 and L.M.S. age 15 at the time. R.J.M. gave evidence this was his first sexual encounter. [ 19 ] L.M.S. moved back to her mother’s home in Ontario during her pregnancy and O. was born in Sioux Lookout, Ontario on [...], 2013.

R.J.M. and L.M.S. never had a relationship outside the one sexual encounter. [ 20 ] Based on the evidence of R.J.M., L.L.L., D.I. and Marvin Gryschuk (a private contractor with a Masters in Clinical Social Work who did an assessment in Ontario as per a court order), I accept the following as facts; once it became known that L.M.S. was pregnant, and given L.M.S.’s age of 15 versus R.J.M. at age 21, the Dryden police investigated this matter to see if charges were warranted.

After conducting an investigation, including an interview with D.I. (who was not in favour of charges being pressed), an interview with L.M.S., where she advised the police she pursued R.J.M. and talked him into having sex with her, and an interview with R.J.M. who confirmed L.M.S.’s version of events, the police decided not to lay charges. They took into account the fact R.J.M. took responsibility for his actions, at the time he believed the age of consent was 16, the families’ wishes that he not be charged and his acceptance of responsibility for his actions.

They gave him a warning and no further action was taken. [ 21 ] On October 2, 2013, L.M.S. returned to the Dryden police and indicated she lied in her earlier statement and in fact she had been sexually assaulted by R.J.M. She indicated she did not tell anyone after it happened and that she was currently afraid of R.J.M. and his girlfriend, but provided no details. The police made attempts to re-interview L.M.S. They left messages on her cell phone and at her residence however she never responded back.

The police closed the file indicating they were of the opinion L.M.S. was upset with R.J.M. because he had a new girlfriend and felt she was now changing her story to get back at him. They thought the fact L.M.S. admitted to lying during the first statement would make it difficult to prove which of her statements was truthful. Therefore, they did not conduct a further investigation or lay any charges. As indicated above, O. was born in […] 2013. Custody and Access [ 22 ] By his own admission, R.J.M. did not react well to finding out L.M.S. was pregnant.

He did come to accept the fact once it was clear L.M.S. was carrying through with the pregnancy. R.J.M. was not notified L.M.S. went into labour and was not present for the birth of O. However, once he knew O. had been born he wanted to become involved. While the Ls and D.I. indicate R.J.M. had little involvement in the first few years of O.’s life, I accept his evidence, supported by his mother J.M., as to the nature and degree of his involvement. [ 23 ] R.J.M. testified during the first six months while L.M.S. and O. lived with D.I. he saw O. occasionally with L.M.S. present.

They would go shopping and spend time together. R.J.M. advises he attended O.’s first birthday party. R.J.M. acknowledges he paid no support but did buy items for O. Then, under the supervision of his parents he began to spend more time with O. Beginning January 2015, he would spend every other weekend at his parents’ house with O. and this continued until March 2016. They would play with crafts and puzzles, playdough, catch tadpoles and engage in various other activities.

J.M., in her evidence, indicated she had no concerns with R.J.M.’s ability to look after O. at this time. [ 24 ] During this period of time L.L.L. and C.A.L. visited Ontario often to be with L.M.S. and O. [ 25 ] In March 2016 the situation changed. According to the evidence of D.I., for several months L.M.S. had been living with a man named J.P. D.I. had been advised by social workers, J.P. was a child abuser and he was registered on the Child Abuse Registry. L.M.S. had been advised of this fact. Notwithstanding this, she continued to live with him and O. was exposed to J.P.

This resulted in D.I. calling Child and Family Services who they removed O. from L.M.S.’s home for one night. O. ended up being picked up by J.M. at D.I.’s home and O. spent the night with J.M. [ 26 ] Based on the evidence of L.L.L and C.A.L., L.L.L. drove to Ontario the next day, picked up L.M.S. and O. and brought them back to The Pas as part of a safety plan. I accept, based on the evidence of R.J.M. and the admission of C.A.L., R.J.M. was not advised of this move at the time by the Ls and only became aware afterwards.

This fact was further confirmed by D.I. who suggested she did not tell R.J.M. of the move, but may have told R.J.M.’s mother J.M. J.M. denies they were advised of the move beforehand. J.M.’s evidence, consistent with R.J.M., was no information was shared with them once O. and L.M.S. moved and they were given no phone number or address for O. They were given a PO Box number to send packages to. I accept the Ms’ version of these events. [ 27 ] Following the move to The Pas, R.J.M. commenced proceedings in Ontario to gain access to O.

R.J.M. did not see O. from March to June of 2016 and did not have the address where O. was living. On November 7, 2016, Justice Peter Bishop issued a final order which provided L.M.S. would have custody and primary care of O. and R.J.M. would have liberal access including significant access during spring break, summer holidays, Christmas holidays, Easter weekend every second year, plus extra access opportunities as O. had not yet started school.

The Ontario court order notes this agreement was made by consent, pursuant to minutes of settlement. [ 28 ] Between June 2016 through to March 31, 2019, R.J.M. had liberal access to O. as set out in the court order. There were complications with the visits at times, however, overall it appeared to be a relatively stable routine which was followed. O. would stay with him at his parents’ home initially and stay with R.J.M. at his home once he moved into a two bedroom apartment. In October of 2017, R.J.M. and his then girlfriend, J., moved to a home in Emo, Ontario and O. would stay with them during her visits.

O.’s visits ranged from a few days to several weeks. O.’s visits to Ontario included visits with her extended family in Ontario, including her grandparents, the Ms, as well as D.I. her maternal grandmother. [ 29 ] R.J.M. and J.M. both describe happy healthy family visits with O., which included an extended family trip, crafts, playtime and many outdoor activities. [ 30 ] In the summer of 2017, L.M.S. was diagnosed with cancer. This necessitated L.M.S. travelling to Winnipeg for treatment. The Ls kept O. in The Pas while L.M.S. was in Winnipeg.

There is conflicting evidence as to whether or not R.J.M. was advised initially of L.M.S.’s diagnosis and treatment plan. I accept at some point R.J.M. did understand that L.M.S. had cancer. I also accept R.J.M. understood, based on the information he was given, there was a 95% chance L.M.S. would recover. [ 31 ] Despite undergoing treatment, including chemotherapy, on March 31, 2019, L.M.S. was diagnosed as terminal. I accept, based on R.J.M.’s evidence, R.J.M. was not made aware of just how sick L.M.S. was initially.

R.J.M. acknowledges, however, once he realized L.M.S. was not raising O. and she would not be able to raise her, he was determined he wanted to raise O. himself and asked his lawyer to advise the L.s and his lawyer did so by letter dated April 10, 2019. [ 32 ] On April 11, 2019, L.M.S., with the assistance of L.L.L. and C.A.L., without notice, applied for and was granted a protection order against R.J.M. on her and O.’s behalf. That protection order was overturned by Justice Champagne on August 6, 2019.

The granting of the protection order by the Judicial Justice of the Peace (JJP) was based on submissions made before the JJP, mostly by L.L.L. and C.A.L. with some information provided by L.M.S. The allegations made in support of the protection order included the suggestion R.J.M. was sexually abusing O. It was also represented to the JJP by C.A.L. that R.J.M. did not have a relationship with O. C.A.L. agreed in her cross-examination this was not an accurate statement and she should have said R.J.M. did not have a “strong relationship” with O.

On the review, Justice Champagne found the protection order should never have been made; much of the evidence had been given by L.L.L. and C.A.L.; the allegations against R.J.M. were not substantiated and the legal test had not been met. The order was set aside. [ 33 ] At the same time the protection order was being pursued, L.L.L. and C.A.L. contacted the Dryden Police Service to see if charges could be laid against R.J.M. for the events which occurred in 2013, when R.J.M. and L.M.S. had sex and L.M.S. was age 15.

Based on the court assessment report filed as Exhibit 2, the Ls shared with the police their thought that if R.J.M. was charged it would help O. remain safe. The police services contacted the child welfare agency, however the police declined to reopen the matter. [ 34 ] On May 2, 2019, L.L.L and C.A.L. filed a notice of application for guardianship.

An interim order of guardianship was granted to them on May 15, 2019. [ 35 ] Based on the evidence of Mervin Gryschuk and the Assessment Report, and acknowledged by the Ls in evidence, in addition to taking the above actions, the L.s contacted Cree Nation Child and Family Caring Agency (CNCFC) in The Pas alleging R.J.M. was sexually abusing O. The Ls indicated O. was displaying sexualized behaviour when she returned from visits with R.J.M. They reported bed-wetting, O. showing her genitals and O. making other comments they thought were inappropriate.

O. was interviewed by the CNCFC and they did not find evidence to support the allegations. CNCFC asked The Child Welfare authorities in Ontario to investigate. That Agency determined there was nothing to investigate and found the behaviours of O. were normal for a child her age and did not indicate or suggest sexual abuse. The Ls, in their evidence, indicated they were not satisfied with the outcome of these investigations. [ 36 ] R.J.M. denied each and every allegation made against him with respect to O. R.J.M. moved quickly to have the protection

order set aside but the hearing was delayed given L.M.S.’s state of health. R.J.M. also reached out to the various child protection agencies and the police to try to understand what was happening. The child welfare agencies provided him with little information. He was not investigated by a child welfare agency or otherwise as far as he was aware. [ 37 ] During this period of time (April 2019 - December 2019) R.J.M. was not able to see O. R.J.M. was allowed telephone and Facebook access, which by his own admission was not always accessed, as it was difficult, particularly given O.’s age.

It was not a good means of communication with a child. [ 38 ] In the initial months following L.M.S.’s terminal diagnosis (March 2019) L.M.S., L.L.L. and C.A.L. refused to speak to R.J.M. at all. R.J.M. and J.M. gave evidence the L.s blocked all contact. L.L.L confirmed in his evidence the last time he spoke to R.J.M. was March 31, 2019. C.A.L. also confirmed in her evidence, she did not respond to R.J.M.’s texts.

She also acknowledged she received calls from R.J.M.’s parents several times and again acknowledged she did not respond to those either because L.M.S. had asked her not to talk to them. [ 39 ] Once the protection order was set aside and the accusations investigated by child welfare agencies, R.J.M. re-gained liberal access to O. and O. returned to visiting R.J.M. in Ontario. [ 40 ] On January 8, 2020, the Court ordered an assessment report to be completed. Court Ordered Assessment [ 41 ] The assessment report was completed and prepared by Family Resolution Service.

Jeanette Kimball, the Family Court evaluator, was engaged to determine what custody, access and guardianship arrangements are in the best interests of O. There was some delay in completing the report due to COVID. A report dated October 22, 2020, was filed with the court as an exhibit. Jeanette Kimball testified as did Mr. Mervin Gryschuk, the clinical investigator with the Office of the Children’s Lawyer in Ontario who was retained to assess R.J.M. in Ontario. [ 42 ] Mr. Gryschuk has a Masters degree in clinical social work. His testimony was clear, concise and straightforward.

He strikes me as a no nonsense individual who calls it as he sees it. He has been doing evaluations for a long time and is well educated in the relevant areas. His report and his evidence was thorough and compelling. [ 43 ] In order to complete his report Mr. Gryschuk interviewed R.J.M. and others and had visits with R.J.M. and O. twice. In addition, he interviewed a number of outside sources and collected and reviewed extensive documentation.

The documentation included; written reports from the Ontario Provincial Police, the Kenora–Rainy River District Child and Family Services, the Dryden police service, report cards from Kelsey Community School in The Pas, health records and court documents provided by R.J.M. and his counsel. [ 44 ] It is important to note that he did not interview the Ls as his area of responsibility was Ontario. He did however understand the concerns raised by them, from other conversations he had, as well as the documents he reviewed. At the end of his report, Mr.

Gryschuk, did not make any recommendations for the assessment, but reported to Ms. Kimball his work and his observations. [ 45 ] Mr. Gryschuk’s testimony and report dealt both with the accusations against R.J.M., the concerns R.J.M. raised about the Ls, as well as the parenting capabilities and proposed parenting plan of R.J.M. [ 46 ] Mr. Gryschuk in evidence, confirmed much of what was in his report. Importantly, he indicated he found no evidence to support the majority of the accusations and allegations brought forward by the Ls. [ 47 ] Mr.

Gryschuk considered a number of concerns raised by the Ls regarding O., including her being subjected to sexual abuse while in the care of R.J.M.; that O. was left in the care of R.J.M.’s brothers during access visits; that the Ls were unhappy with how R.J.M. responded to O.’s bed-wetting, as well as the concern R.J.M. is not sensitive to O.’s situation. Mr.

Gryschuk also addressed the allegations R.J.M. was fired from a job for sexual harassment; R.J.M. has not allowed the Ls telephone or other access to O. while he has O. and that he does not allow D.I. access to O., even when D.I. lived 20 minutes away from R.J.M. Mr. Gryschuk also considered the fact that R.J.M. impregnated L.M.S. when she was 15 years old and R.J.M. was 21. [ 48 ] Mr. Gryschuk, after reviewing all the information, concluded there is no information to support the most serious allegations raised by the Ls and in particular the allegations of sexual abuse of O.

He found no evidence to suggest O. is at risk of abuse while in R.J.M.’s care. [ 49 ] Mr. Gryschuk did not appear to find it concerning R.J.M.’s brothers are involved with O., and in any event this does not form part of R.J.M.’s parenting plan. Mr. Gryschuk did note R.J.M. does deal with O. differently than the Ls on the bed-wetting issue. Where the Ls acknowledge O. still sleeps with pull-up diapers at the age of seven, R.J.M. does not have O. wear diapers of any sort. Rather if there is an incident of bed-wetting while O. is with R.J.M., it is not made out to be a big deal.

O. and her dad strip the bed together and move on. R.J.M. indicates he never shames O. or blames her for bed-wetting. In addition, R.J.M. advises, O.’s bed-wetting has been reduced over time. [ 50 ] Mr. Gryschuk acknowledged both sides withheld telephone access at times. He was not supportive of either doing this. He also confirmed R.J.M. had lost a job because he made a comment that was concerning and was dismissed because it was considered to be sexual harassment. However, when he confronted R.J.M. with the comment and the fact he had lost his job as a result, R.J.M. acknowledged it had happened.

Although R.J.M.’s version of what was said was different from what his employer had said, Mr. Gryschuk found R.J.M. acknowledged the situation and said he had sometimes made off colour jokes and his comment did in fact result in his dismissal. [ 51 ] Mr. Gryschuk in cross-examination was asked to address the fact R.J.M. slept with L.M.S. when she was age 15. He was also asked to comment on R.J.M.’s behaviour as a 21 year old, based on anticipated testimony that R.J.M. gave a 15-year-old L.M.S. alcohol

when R.J.M. and L.M.S. were younger. Mr. Gryschuk indicated he had no information about the alcohol, but his observation was R.J.M. has clearly matured in the years since these incidents occurred. [ 52 ] Mr. Gryschuk’s overall assessment of R.J.M. was that he was straightforward and honest. He testified R.J.M. did not deny anything that he had done. He did not mislead and he owned up when he came up short. He said if R.J.M. had been trying to slide something past him, he would have found it. Mr. Gryschuk was aware R.J.M. had a ttention-deficit/hyperactivity disorder (ADHD) as R.J.M. spoke about it.

R.J.M. indicated he takes his medication regularly. Mr. Gryschuk also indicated many parents parent successfully with ADHD. Mr. Gryschuk also indicated R.J.M. will ask for help and direction from his support system when he is unsure. [ 53 ] Mr. Gryschuk also acknowledged the concerns R.J.M. had raised about the Ls. R.J.M. was concerned they were fabricating stories to discredit him and strengthen their position with the Court. R.J.M. is concerned they are making false allegations and taking steps to remove O. from his life.

R.J.M. stated the Ls do not deal with O.’s bed-wetting appropriately and he is concerned C.A.L. allows O. to sleep with her every night, which does not promote independence in O. [ 54 ] Mr. Gryschuk indicated there was some evidence to support R.J.M.’s concerns. The assessment report indicates the Ls were aware in March 2019, R.J.M. wanted O. to live with him once he realized L.M.S. was no longer able to care for herself. Mr. Gryschuk had reviewed text messages which indicated L.M.S. had discussed and agreed to this plan with R.J.M. in October 2018.

Notwithstanding this, R.J.M. believes when the Ls found out, they fabricated sexual assault allegations against him. [ 55 ] Mr. Gryschuk notes the Ls assisted L.M.S. in applying for the protection order. They also contacted the Dryden police service on April 8, 2019, and raised the fact that R.J.M. was fired from a job for sexual harassment. The Ls in support of their allegations of sexual assault have taken O. for medical examinations to support their claim.

Notwithstanding the examination did not support their claim, they continue to pursue the child welfare agencies, despite the fact the investigations concluded otherwise. This is concerning behaviour to Mr. Gryschuk. Mr. Gryschuk was asked for his opinion on the possible motivation of the Ls to take these actions, and he testified; either they are concerned O. was at risk, which is not supported, or they are taking the steps to enhance their chance at custody of O. [ 56 ] With respect to R.J.M.’s parenting ability and plan, Mr. Gryschuk reports he met with R.J.M. and interviewed him twice.

He learned R.J.M. had a healthy, happy childhood with no trauma. He has no substance abuse or mental health issues in his family. R.J.M. acknowledged he has ADHD which is treated by medication. He graduated high school with honours and from there took on various jobs. He has been employed for the last few years with a gold company and he works seven days on and seven days off. He had a steady partner for two years named, J., who saw him interact with O. [ 57 ] J. was interviewed by Mr. Gryschuk and only had positive things to say about R.J.M. and his parenting.

She said R.J.M. had a close relationship with O., and R.J.M. can and does meet all of O.’s needs. [ 58 ] R.J.M. and J. are no longer together. R.J.M. is in a new relationship with a woman who lives in the United States. It is R.J.M.’s intention to have this woman come to live with him once COVID passes. [ 59 ] Mr. Gryschuk’s report states R.J.M. advises him, R.J.M.’s priority is O. R.J.M. puts her first and considers himself to be a loving and understanding parent who is consistent and level in dealing with her. His discipline approach is to use time outs.

He does not raise his voice to O. and he has never spanked her. [ 60 ] Mr. Gryschuk observed O. and R.J.M. together twice. Once at R.J.M.’s home and once at R.J.M.’s parents home in Vermilion Bay. He also interviewed O. privately. On the visits with both of them, he reported that throughout both visits, O. spoke easily and laughed often and regularly. He found she had no discomfort at being in her father or grandparents’ care. Rather she appeared to enjoy being in their presence and interacting with them.

He found O. followed the directions of her father when requested to do so and R.J.M.’s comments, questions and directives were all appropriate. O. was talkative and inquisitive during all activities. [ 61 ] Mr. Gryschuk found both homes to be safe and child focused. Both homes had activity materials and furnishing suitable for a child of O.’s age. [ 62 ] While speaking with O. privately, O. did share that she does not like change. She also shared she had been told by her grandparents, the Ls, that her dad is trying to take her away from them.

The report indicated that she had been told by an “Uncle Jeff” that the Ls had taken O. away from them. In the second interview, O. stated she thought about it and now does not believe that her father is trying to take her away from her grandparents. At one point in the interview, O. indicated that she wished her father would marry someone so she could have a mother again. When asked what she would like to see happen, O. indicated she would like to continue living with her grandparents, the Ls, and having visits with her father. [ 63 ] Mr. Gryschuk found O. to be happy.

She is not depressed and he said he had no concerns about her mental health even though she lost her mother at a young age. He did note her trouble sleeping at night and that she was sleeping with her grandmother C.A.L. He attributed this to the loss of her mother. Mr. Gryschuk did note when speaking to O. privately, she indicated she was afraid of the dark and did not like that her father did not sleep with her. However, during the next visit O. said it was okay if she slept by herself as she knew her father would be there if she was scared. [ 64 ] R.J.M.’s parenting plan, as described in Mr.

Gryschuk’s report and by R.J.M. in evidence, includes having O. moved to Emo to live with him. Because he works seven days on and seven days off, he is considering hiring an in-home care provider while he is at work. He intends to ask a potential care provider to obtain a vulnerable service sector check. O. would attend school in the community. When she is not in school, care will be provided by Ms. Ogden. Ms. Ogden is a family friend and also would be O.’s grade two teacher. She is the parent of one of R.J.M.’s friends and has agreed to do this for him.

In an emergency, R.J.M. would rely on his friends and neighbours for assistance. In addition, R.J.M.’s parents are in favour of him having custody of O. and are available as supports, as are other family members. [ 65 ] In his testimony, R.J.M. acknowledges O.’s Indigenous heritage. O.’s grandmother D.I. has Treaty status and D.I. testified she

would like to apply for status for O. R.J.M. acknowledges he is trying to learn as much about Indigenous culture as possible and he would involve O. in Indigenous activities. [ 66 ] Mr. Gryschuk at the end of his evidence was asked if he had any recommendations going forward. He suggested O. should get counselling and if there is to be any change, that it occur over a period of time. [ 67 ] Jeanette Kimball, the Family Court evaluator from Family Resolution Service completed the final report dated October 22, 2020. Ms. Kimball has been a court evaluator for 16 years. She is also a grandparent advisor. Ms.

Kimball conducted interviews with C.A.L. and L.L.L. She also reviewed the report of O.’s play therapist, reviewed the court record and relied on the report of the Children’s Lawyer of Ontario, Mr. Gryschuk. Ms. Kimball also testified at the hearing. [ 68 ] Ms. Kimball focused more on the caregiving provided to O. by the Ls. Ms. Kimball noted the Ls have been very supportive of O. She recognizes L.L.L. and C.A.L. have gone through a very difficult experience with their daughter’s cancer diagnosis, treatment and subsequent death.

Through all of this they have cared for O. and supported her through the loss of her mother. Ms. Kimball noted O. appears to have secure attachments which provides stability. O. is also able to develop positive relationships. Ms. Kimball found with the loss of her mother O. does have some confusion, but she found it noteworthy, O. wishes her father would marry so she could have a mother again. [ 69 ] Ms. Kimball noted when O.’s school closed due to COVID, C.A.L. homeschooled her and says C.A.L. would be prepared to do this in the future again if it is necessary.

She knows the Ls firmly believe O.’s needs are best met by remaining in their care and that moving her to live with her father in Ontario would cause her to experience more loss after losing her mother in July 2019. The Ls have indicated it would be devastating for them if O. moves, but it would be their intention to maintain a relationship with her. [ 70 ] On the recommendation of CNCFC and with the support of the Ls, O. saw a child therapist approximately six times in Winnipeg. This was in order to help her deal with the grief of losing her mother.

Unfortunately, the office closed down due to COVID and this therapy was discontinued. O. also saw a local therapist in The Pas, however this therapist was then moving. The school counsellor has been seeing O. They filed a letter with the Court stating O. is sometimes chatty and sometimes not. The letter indicated O. has spoken about her family and moving to The Pas; she has also voiced concerns about going to see her Dad on occasion before a scheduled visit but then says she wants to see her Nana and friends when she goes to her Dad’s.

The school counsellor is seeing O. on an ongoing basis and the counsellor has not raised any specific concerns about O. or her behaviour. [ 71 ] Ms. Kimball observed O. in the L home over a video platform. She noted O. has a lot of energy but was engaged for 45 minutes without difficulty. She reported there is much good-natured teasing and joking between O. and her grandparents. Ms. Kimball acknowledged the Ls have given very good care to O. It appears based on her observations, the Ls share a very good relationship with O. [ 72 ] When giving evidence Ms.

Kimball did express concerns about the fact O. was still sleeping with C.A.L. and still wearing a form of diaper to bed at age 7. While she indicated sleeping with her grandmother may be understandable given the loss of O.’s mother, she felt ultimately you have to encourage the child to have independence. Ms. Kimball favoured R.J.M.’s approach to dealing with the bed-wetting issue. [ 73 ] Ms. Kimball also appeared to be concerned that C.A.L. was allowing O. to have a say in whether she visited R.J.M. at age 5. Ms.

Kimball indicated this put the burden on the child and puts them in an unfair and difficult decision making position. [ 74 ] Ms. Kimball did acknowledge the concerns the Ls had about R.J.M. She acknowledged the age difference between L.M.S. and R.J.M. and indicated this factor did not cause her concern about R.J.M. raising a young girl. Similarly, with respect to the sexual harassment allegation and the firing of R.J.M., she indicated this did not concern her as it pertains to R.J.M.’s ability to raise O., after speaking with Mr.

Gryschuk. [ 75 ] With respect to the sexual abuse and the steps the Ls had taken, Ms. Kimball commented it appears to her, the Ls had wanted a finding of abuse. In her opinion, it is the Ls’ view R.J.M. is not a good father and he is incapable of looking after O. [ 76 ] After considering all of the interviews and reviewing all of the material, after observing O. with the Ls in their home and discussing Mr. Gryschuk’s findings, Ms. Kimball came to the opinion that R.J.M. should raise O. and he should have custody of her and that is her recommendation. [ 77 ] Ms.

Kimball explained there is a different role for a grandparent versus a parent in a child’s life. A child is entitled to have both. Ms. Kimball believes that unless there is a reason a parent cannot raise a child, it is in the best interests of the child to be raised by that parent. [ 78 ] In this case, she believes it is in O.’s best interest to be raised by her father because the father plays a critical role in a child’s development. O. has a relationship with her dad. She is a sociable, confident child. In Ms.

Kimball’s view there is a presumption a parent should parent the child. [ 79 ] This is not to say that the Ls did not provide well for O. Ms. Kimball acknowledges they have. She says it is important a strong relationship with the Ls be maintained for O.’s sake. [ 80 ] Both L.L.L. and C.A.L. gave evidence at the hearing. It is clear they love O. very much. L.L.L. described how well O. was doing both in their home and in school. He indicates she is a good student and has a very good report card which is supported by the evidence provided by the school.

He says O. is very good at colouring, crafts and painting and she is a very imaginative young girl. L.L.L. indicates she has many friends in the community and there are many people in town who support her. L.L.L. spoke about O.’s Indigenous background and the fact that O. is very proud of this. [ 81 ] C.A.L. shares L.L.L.’s love and enthusiasm for O. It is clear C.A.L. has been a very involved grandmother from homeschooling to taking O. to Sparks and Brownies as well as participating in other school and community activities.

[ 82 ] Both L.L.L. and C.A.L. describe the difficult journey they have gone through beginning with their 15-year-old daughter becoming pregnant by R.J.M. It is clear that has been a very difficult issue for them to deal with. L.L.L. feels R.J.M. harassed L.M.S. with telephone calls and text messages on an ongoing basis including when she was ill. L.L.L. does not describe R.J.M. as being supportive of L.M.S. He does not describe R.J.M. as being a good father to O. In his mind, O. does not enjoy her visits with her father and according to L.L.L. he thinks she is scared to go there.

He indicated he has concerns about her bed-wetting patterns after her visits with R.J.M. It is clear L.L.L. thinks very little of R.J.M. and is quite critical of him in all ways. While he stated he does not speak negatively about R.J.M. around O., it is clear he has very strong negative feelings towards R.J.M. [ 83 ] Having said that, both R.J.M. and C.A.L. indicate if the Court decides that O. should live with R.J.M., they will support the relationship and will make the transition as happy an occurrence as possible because they will have no choice.

L.L.L. did express concern that they would only be able to see O. for limited periods of time. [ 84 ] C.A.L. indicates she is usually the communicator with R.J.M. She acknowledged it is important that O. have a relationship with R.J.M. and she has facilitated that both by telephone calls and by driving O. to the meeting spot when it is R.J.M.’s turn to visit. C.A.L. indicates that either herself or L.L.L. are almost always home to look after O. and Auntie T.S. can step in when necessary as well.

Both C.A.L. and R.J.M. indicate it was L.M.S.’s wishes that they, and not R.J.M., raise O. [ 85 ] C.A.L. maintained she and L.L.L. supported L.M.S. getting a protection order because of what they understood happened between R.J.M. and L.M.S. when L.M.S. became pregnant. It is their position that L.M.S. wanted R.J.M. out of her and O.’s life for as long as possible and she and L.L.L. supported that. They are concerned that O. is being abused by R.J.M., and they have taken steps to determine if that is the case.

Neither L.L.L. or C.A.L. have accepted the outcome of the child agency investigations, the police dealings with R.J.M., or the home assessment reports. [ 86 ] C.A.L. addressed the fact O. sleeps with her and that she wears pull-up diapers. It is C.A.L.’s view that O. can sleep with her as long as O. wants to. C.A.L. is also of the view that the bed-wetting is not a big deal and they disagree with the way R.J.M. approaches this. [ 87 ] The Ls’ parenting plan is to continue as they are doing. They feel it is very important that O. be raised by the people who knew L.M.S. the best.

They also feel that they are in a good position to support O. in exploring her Indigenous culture. They clearly believe that they are the best and most loving people to raise O. I accept, based on their evidence, they would maintain some type of a relationship between O. and R.J.M. However, they are clearly not fully supportive of the liberal and generous access they see R.J.M. having at the moment. [ 88 ] L.M.S.’s mother D.I. also testified and she is supportive of the Ls raising O.

While she tries to maintain a civil relationship with R.J.M. for O. sake, it is clear the relationship does not go much beyond that. D.I., like L.L.L. and C.A.L., have never been to R.J.M.’s home and have never seen him parent O. D.I. acknowledges that she is allowed to have visits with O. when O. is visiting R.J.M., but has been dissatisfied with the arrangement at times when she has requested a few more hours with O. and R.J.M. has declined.

D.I. does a lot of the driving with O. back and forth between Ontario and The Pas because she has family in The Pas and does visit there from time to time. [ 89 ] While D.I. acknowledges O.’s relationship with R.J.M. is important and she does her best to support it, she prefers if O. is placed with the Ls in The Pas where she is happy. She feels R.J.M. is not concerned enough about O. and she feels he does not provide a stable home. D.I. is concerned he will limit her access to O. if he has custody. [ 90 ] As for her relationship with R.J.M., it is minimal.

She is unimpressed with how he has conducted himself in conversations with her. She has described R.J.M. spending long periods of time discussing the Ls and his relationship with them. At one point when R.J.M. was very upset on the telephone, and raging according to D.I., D.I.’s husband had to intervene and hang up on R.J.M. This behaviour on R.J.M.’s part did not continue after that. D.I. communicates mostly with J.M. and not R.J.M. [ 91 ] D.I. has a strong bond and relationship with O. and wants that to continue.

D.I. is supportive of O. learning of her Indigenous heritage and exploring her Indigenous culture and D.I. wants to apply for Treaty status for O. [ 92 ] J.M. testified as well. J.M. has been involved in O.’s life since O. was an infant. It was J.M. and her husband who had O. to their home and R.J.M. stayed with them when O. visited in the early days. They continue to have visits with O. and are supportive of R.J.M. having custody. J.M. has no concerns with R.J.M. raising O. She indicated he is very capable of looking after O.’s school, medical and other needs.

J.M. said R.J.M. has a strong support system and always reaches out for help if he needs it. [ 93 ] J.M. confirmed much of R.J.M.’s evidence with respect to his relationship with the Ls and the lack of communication from the Ls to the Ms. J.M. indicated they were told L.M.S. had an issue with her spleen in the summer of 2016 but she had a 90% chance of recovery. J.M. found out L.M.S. was terminally ill when she read the transcript from the protection order hearing. She indicated she tried to reach the Ls but none of them would respond. [ 94 ] J.M. says R.J.M. and O. have a very good bond.

They have a very loving relationship and O. hugs R.J.M. and wants to do things with him. R.J.M. is very interactive with O. and takes her fishing, camping and skating. Both she and R.J.M. indicated when O. has not seen R.J.M. for a while; she is initially stand offish, but warms up quickly and settles right back in. What is in O.’s Best Interests? [ 95 ] I find it is in O.’s best interests to be placed into the custody and control of her father R.J.M., with the accompanying move to Emo, Ontario. I therefore deny the guardianship application. My analysis and reasons follow.

The Law [ 96 ] The Ls have applied for guardianship pursuant to The Child and Family Services Act , C.C.S.M. C. c80 and amendments

thereto. Section 77(1) of the Act , states: Upon application to court by an adult, a judge may appoint the applicant a guardian of the person of a child and may remove a guardian so appointed with or without appointing another guardian. [ 97 ] Any consideration of a guardianship must take into account the considerations set out in the Declaration of Principles set out at the beginning of the Act as follows: Declaration of Principles The Legislative Assembly of Manitoba hereby declares that the fundamental principles guiding the provision of services to children and families are: 1.

The safety, security and well-being of children and their best interests are fundamental responsibilities of society. 2. The family is the basic unit of society and its well-being should be supported and preserved. 3. The family is the basic source of care, nurture and acculturation of children and parents have the primary responsibility to ensure the well-being of their children. 4. Families and children have the right to the least interference with their affairs to the extent compatible with the best interests of children and the responsibilities of society. 5.

Children have a right to a continuous family environment in which they can flourish. 6. Families and children are entitled to be informed of their rights and to participate in the decisions affecting those rights. 7. Families are entitled to receive preventive and supportive services directed to preserving the family unit. 8. Families are entitled to services which respect their cultural and linguistic heritage. 9. Decisions to place children should be based on the best interests of the child and not on the basis of the family's financial status. 10.

Communities have a responsibility to promote the best interests of their children and families and have the right to participate in services to their families and children. 11. Indian bands are entitled to the provision of child and family services in a manner which respects their unique status as aboriginal peoples. [ 98 ] While all decisions must take into account and consider the above Principles,

section 2 of the Act , states as follows: Best Interests 2(1) The best interests of the child shall be the paramount consideration of the director, an authority, an agency and a court in all proceedings under this Act affecting a child, other than proceedings to determine whether a child is in need of protection, and in determining best interests the child's safety and security shall be the primary considerations. After that, all other relevant matters shall be considered, including: (

a) the child's opportunity to have a parent-child relationship as a wanted and needed member within a family structure; (

b) the mental, emotional, physical and educational needs of the child and the appropriate care or treatment, or both, to meet such needs; (

c) the child's mental, emotional and physical stage of development; (

d) the child's sense of continuity and need for permanency with the least possible disruption; (

e) the merits and the risks of any plan proposed by the agency that would be caring for the child compared with the merits and the risks of the child returning to or remaining within the family; (

f) the views and preferences of the child where they can reasonably be ascertained; (

g) the effect upon the child of any delay in the final disposition of the proceedings; and (

h) the child's cultural, linguistic, racial and religious heritage. [ 99 ] Before addressing O.’s best interests, I wanted to address a point of law as raised by counsel. The question is, what weight is to be given to the fact R.J.M. is O.’s biological father? Is there a presumption in favour of a biological parent versus a grandparent? [ 100 ] R.J.M.’s counsel argues biological parentage is a significant factor. While other factors must be considered, he relies on Principle #3 and s. 2(1)(

a) of the Act , as support for this proposition. [ 101 ] R.J.M.also filed the case of CFS v. R.G.L.L. and S.J.H . and S.K.H. and T.L.S. , 2016 MBQB 92 in support. In this case, Justice Dunlop when considering the guardianship application issue, referenced the above principles and said at paragraph 119: The Act dictates that families, and in particular parents, are to be supported. When it is in the best interests of a child’s safety, security and well-being to return to a parent, the principle of “parent versus everyone else” trumps all others.

[ 102 ] In that case, Justice Dunlop denied the application of very caring grandmothers in favour of returning the child to a mother who had previously lived a difficult lifestyle due to her battle with addiction, but who was now practicing a sober lifestyle. A distinguishing feature in that case is the child had lived with the mother for the first four years of the child’s life unlike R.J.M.’s situation where O. has not actually lived with him full-time. O. has though lived away from the Ls, in Ontario until she was two and a half and she has spent significant period of access in Ontario as well.

Nonetheless, the principle that a parent has a leg up on others, is supported in the case law. [ 103 ] The Ls on the other hand urge me to consider the fact R.J.M. is her father as just one factor in determining the best interests of O. It does not give R.J.M. a leg up simply because he is the biological parent. They point me to the case of S.J.B. v. T.B.S. , 2020 SKCA 93 .

This was an application for the equivalent of a guardianship by the paternal grandmother, who the two children had lived with for all of their four and six year old lives with periods of access to the mother who was contesting the application in favour of custody herself. [ 104 ] The Saskatchewan Court of Appeal canvassed the jurisprudence from other provinces and determined many provinces supported the principle that there is no presumption in favour of a biological parent when the court is determining the appropriate parenting arrangements for a child.

The court said it was a factor that is subsumed within the best interests framework and must be considered in conjunction with all the other factors (paragraph 56). The Court went on to say: However,…the weight to be assigned is fact-dependent and highly contextual. Its importance to a specific child’s best interests will depend on the circumstances of the case.

It may carry great weight in some situations and substantially less weight in others, but the importance of this factor must always be analyzed through the lens of the best interests of the specific child whose parenting arrangements are being determined. (Paragraph 58) [ 105 ] The Ls also provided a Manitoba case, T.E.D.D. v. C.M.Y. C.M.Y. et al , 2016 MBQB 35 (at Tab 1 of the applicants’ casebook).

In that case, when considering a contest for custody and guardianship between a mother and a grandmother, the mother had made the argument if biological parents come forward and they can adequately care for the children, then they should have preference over the grandparents.

Justice Allen in response to this argument, stated; “While the general principle may be that a parent is preferable to a grandparent, all else between them must be equal before this principle is applied”. [ 106 ] I am mindful of the above cases, and the other cases filed, as I proceed to consider the best interests of O. pursuant to the Declaration of Principles and the applicable factors set out in s. 2(1) of the Act as well as other factors.

I will have further comments on the cases in due course. [ 107 ] As I consider the best interests of O. and who best can meet the requirements in the Act , it is clear O. is a deeply loved child. The commitment the Ls have made to O., the space they have created for her in their hearts and in their home is evident. They stepped up to help their daughter L.M.S. when L.M.S. had to escape a dangerous situation in Ontario, living with a person on the Child Abuse Registry while O. was in her care. They have taken care of O. throughout L.M.S.’s illness and provided a stable, secure and safe environment for O. to grow.

They have been very involved in her education and they have ensured she is a participant in her community. They have shown their love and commitment to O. [ 108 ] I am concerned however, not all of O.’s mental and emotional needs are being met and addressed by the Ls. In particular, I am concerned the attitude of the Ls to R.J.M. and their evident dislike for him, cannot be masked and will affect O. as she grows older. I am further concerned O. is not being given her best chance to grow and become independent in her current circumstances.

Here I point to the fact, at age seven, she is still wearing a pull-up diaper to bed and she sleeps with C.A.L. every night while L.L.L. sleeps elsewhere. The Ls appear to give O. much freedom in her decision making. C.A.L. has indicated the sleeping arrangements can go on for as long as O. likes. In addition, the Ls were looking to O. to decide if she wanted to see and spend time with her father at the age of five. [ 109 ] As the assessor, Ms. Kimball pointed out, this is concerning. O. ought not to be caught between a tug-of-war of emotions between her father and grandparents.

This is not healthy for her development and places her in a very conflicted positon. In addition, O. needs to become more independent, to be encouraged to sleep on her own and have the bed-wetting issues addressed. I say this recognizing this may be a temporary situation as a result of the trauma O. has suffered in losing her mother. However, the worrisome

part is the Ls’ willingness to let O. decide these issues as opposed to encouraging her independence. [ 110 ] Further, the behaviour of the Ls towards R.J.M. and the allegations made against R.J.M. is very troubling. The Ls have criticized and disparaged R.J.M. at every opportunity. They have raised several allegations and engaged many organizations and entities to investigate.

Despite R.J.M. never being charged with an offence, despite no doctor finding evidence O. has been abused after an examination, despite child welfare agencies indicating O.’s behaviour was not unusual for a child her age and they found no evidence of abuse, the Ls have held firmly to their beliefs and have persisted in the allegations. [ 111 ] I found as facts, the Ls did not tell R.J.M. they were moving O. and L.M.S. to The Pas in advance. I found they did block R.J.M.’s access to O. I found they would not respond to his calls and texts or those of R.J.M.’s parents.

I found they largely pursued the protection order and provided the majority of the evidence at the hearing, and they were not forthcoming with the JJP and in fact, lead the JJP to believe R.J.M. was not involved with O. when he was. [ 112 ] The attempts to reduce R.J.M.’s involvement in O.’s life, despite existing court orders which provide liberal access is worrying.

The fact the Ls have suggested if they are successful in becoming O.’s guardians R.J.M. should perhaps have less access than he currently does, appears to confirm they are intent on limiting his presence in O.’s life. [ 113 ] None of these actions is in line with the Declaration of Principles which expect families to support one another. They do not respect the principle that families and children have the right to the least interference in their lives and relationships. They do not support an environment where a child can flourish. All of the above actions create conflict, anxiety and angst.

This is certainly not in O.’s best interest. [ 114 ] The attitude of the Ls that R.J.M. is not enough and can and will never be enough to be a good parent to O., cannot promote the strong emotional and psychological development O. needs and deserves. It cannot promote a strong relationship with her father and make

her secure in that relationship. O. is entitled to a strong relationship with her father, particularly given she has suffered the loss of one parent already. [ 115 ] It is a fact R.J.M. slept with a 15-year-old. However, he has acknowledged this and recognized it to be a mistake. He was regretful of his actions. It is also a fact, as T.S., L.M.S.’s sister testified, R.J.M. hung out with kids younger than him, bought them cigarettes and alcohol and paid for hotel rooms where groups of them partied. R.J.M. did not deny this.

He also did not dispute or refute the evidence of T.S., where she indicated R.J.M. made a pass at her when she was 18 and he was 21 and he wanted her to perform oral sex. I do however disagree with the weight counsel for the Ls have put on this incident and in particular, I disagree with the Ls’ counsel’s characterization of R.J.M. as a sexual predator as a result. This is overstated by far and I say that because T.S.’s own evidence is she continued to hang out with R.J.M. after L.M.S. became pregnant and T.S. spent two nights in the same hotel room with R.J.M., where nothing happened. [ 116 ] As the assessor Mr.

Gryschuk noted, and as R.J.M.’s mother noted, R.J.M. has grown up and matured since he was age 21. As Ms. Kimball indicated, even the fact he was fired for an inappropriate comment which amounted to sexual harassment, would not affect her opinion of his ability to raise O. [ 117 ] The Assessors shared the concern that the Ls’ behaviour toward R.J.M. is negative. It is not conducive to building a healthy relationship of any type with O.’s father. [ 118 ] With respect to R.J.M., I acknowledge some of the behaviours he displayed at a younger age were concerning.

In no way does the Court condone a 21-year-old sleeping with a 15-year-old. It is also disappointing to see that R.J.M. was fired for sexual harassment for making inappropriate comments. Having said this, I agree with the assessors, that R.J.M. has obviously matured and learned from these past mistakes. [ 119 ] The Ls’ counsel has also asked me to question R.J.M.’s credibility given answers on cross-examination about a conversation he had with O. about why she did not live with him. This conversation took place while the hearing was ongoing in The Pas and R.J.M. had a visit with O. and his mother.

R.J.M.’s answer to the question was somewhat different than his mother’s answer as to the conversation and R.J.M.’s mother was present during that conversation. I did not find that this led me to question R.J.M.’s credibility overall. The exchange was not significant in the overall context of the entire case. [ 120 ] I found R.J.M. presented as a truthful witness who acknowledged his shortcomings, his mistakes and expressed regret at the decisions he had made. At the same time, R.J.M. presented as an engaged, loving, enthusiastic parent to O. He has bought a home with some property and he has a bedroom for O.

He has a parenting plan which has been accepted by the assessors as being a suitable plan and one which will address O.’s needs. [ 121 ] While R.J.M. was not initially enthusiastic about L.M.S.’s pregnancy, and questioned if he was the father, since O. was just months old, he has participated in her life as much as he has been able to. R.J.M. has faced many obstacles in exercising his rights to access. When he faced these barriers, he moved swiftly to change the status quo and restore his access to O. This was evident when L.M.S. and O. were moved to The Pas without notice to him.

He immediately sought relief in the Ontario courts and was successful in gaining liberal access to O. by doing so. He did that again when a protection order was issued against him and he quickly moved to have it set aside. Again, he did so successfully and regained liberal access to O. This shows the Court the depth of his commitment to and love of O. [ 122 ] I have considered the testimony of Ms. Kimball and Mr. Gryschuk and I have considered the information contained in the Assessor report. Consistent with Justice Mullally’ s approach in F.J.B. v.

D.B.J. et al , 2005 MBQB 26 , at paragraph 20 , I agree the assessment report and the testimony of the assessors, should be given great weight. The assessment, particularly of R.J.M., was detailed and thorough. The recommendation in the final report is R.J.M. should have care of O. [ 123 ] I am satisfied R.J.M. is willing, capable and excited about providing for O.’s needs be it mental, emotional, physical, medical or educational. The evidence indicates R.J.M. has a strong relationship with O., they enjoy spending time together and he is teaching her about the outdoors and about life in rural areas.

He engages in play with her whether it be crafts or playdough or games. [ 124 ] R.J.M. has a strong support system; his mother and father are nearby and have already demonstrated their commitment to assist him when he needs it. While mention has been made of a girlfriend in the United States who may move to Emo, I do not find this is currently part of R.J.M.’s parenting plan and I did not factor this into my decision. [ 125 ] There is another important factor in my analysis while considering O.’s best interests.

Given all that has been said about R.J.M. and all the challenges the Ls have put him to, R.J.M. is still open and willing to give them access to O. so they can continue this important relationship. R.J.M. did not waver of this point. I do not have concerns he will keep O. from them, while I cannot be as confident the relationship with R.J.M. would be maintained if I had granted the guardianship application.

Given the importance of extended family and grandparents, encouraging this relationship for O. is clearly in O.’s best interests. [ 126 ] With respect to O.’s Indigenous heritage, R.J.M. has indicated a willingness to learn about the Indigenous culture with O. and to promote her learnings in this regard. I am also encouraged that O.’s maternal grandmother, D.I., lives in Ontario and is also going to encourage O. to explore her Indigenous heritage and apply for Treaty status for O.

I believe D.I. is well positioned to teach O. about her Indigenous roots, its customs and traditions. [ 127 ] I have also considered the fact that O. will be moving to Ontario. This does mean a change not only in her home and community but her school as well. I am encouraged by the reports of her current school which indicated that she is a good student, she is conscientious and a contributor in the classroom. I think this will stand O. well as she moves into a new school environment.

R.J.M. has also indicated that one of her caregivers will in fact be her grade two teacher and I believe this will ease the transition of O. to a new school. [ 128 ] With respect to the relocation, I am also encouraged by the fact that O. has already spent large amounts of time in Ontario when

R.J.M. had access. While there is no doubt that this transition will be a challenge, it will be less so because of her familiarity with her family in Ontario. I also believe that O.’s still relatively young age and outgoing and friendly personality will help her to adjust to her new environment. In addition, I believe given the challenges and changes in O.’s life, she would benefit from counselling to ensure she is adjusting and managing appropriately. I believe R.J.M. will ensure this happens. [ 129 ] I appreciate this decision may be very difficult for L.L.L. and C.A.L. as well as for D.I. Ms.

Kimball explained the relationship between a child and their grandparents is an important one. I concur in that statement. L.L.L., C.A.L. and D.I. are part of the fabric of O.’s life. They have much to teach her not only about her mother L.M.S., but also about life in general. While the Ls no doubt stepped up to care for O. in a time of need, it is time for them now to assume the role of grandparents as opposed to having a parenting role and to let O. have a meaningful relationship with her father. I believe the Ls and D.I. are all good people.

I believe they have been dealing with a difficult issue through a very tragic time in their life and I accept they believe all of their actions were justified and well meaning. I hope each of you has an opportunity to seek counselling yourselves to help you deal with all you have been through. [ 130 ] In the Act , s. 2(1)(a), indicates it is a relevant consideration that a child have an opportunity to have a parent-child relationship, as a wanted and needed member within a family structure. O. has the opportunity to have this relationship with her father who clearly wants her in his life and in his family.

Having reviewed all of the evidence and considered all of the issues, having considered the declaration of principles as well as the paramount consideration of the best interests of O., I do find it is in O.’s best interests to be in the custody and care of her father R.J.M. [ 131 ] With respect to the question of whether there is a presumption in favour of biological parents, I have determined I do not need to answer that question specifically in this decision. I find in my assessment on the whole, O.’s best interests are better served with R.J.M. for a number of reasons which are set out in my decision.

With or without the presumption, I find it is in O.’s best interests to be with R.J.M. [ 132 ] I have considered the issue of access. In reviewing the notice of application I note that there was no request for relief in the alternative to guardianship. R.J.M. has indicated that if he was successful in gaining custody of O. he would be prepared to give the Ls the access which was recommended in the Assessor report. I feel it would be important for R.J.M. to stick by that commitment and ensure that O. maintains a strong relationship with L.L.L. and C.A.L. as well as D.I. and her other family in The Pas.

While I am making no order in that regard, I am hopeful that the parties will have a respectful discussion and come to an amicable arrangement. [ 133 ] When the assessment was completed in October 2020, it was anticipated if the recommendations were accepted by the Court, O. would move to Ontario at the end of the school year in 2021. That is, she would move in July 2021 after she had finished school and been spoken to about the plan forward. [ 134 ] It is important that O. be settled in Ontario prior to the school year beginning.

Given that, O. will be placed in the custody of her father R.J.M. as of August 14, 2021. It will be up to R.J.M. to attend to The Pas to pick her up. [ 135 ] If the parties cannot agree as to how O. will be told about the changes which are coming, then R.J.M. will be designated as the person to tell her.

That conversation should be held no later than August 6, 2021, to give O. an opportunity to adjust to the changes. “Original signed by:” WIEBE, CJ Postscript : Following the conclusion of the reading of the decision, the August 14, 2021, date was amended to the following: O. will be placed in the custody of R.J.M. as of August 14, 2021, or within that week as agreed by R.J.M., but no later than August 21, 2021.